Commodity Express Transportation, Inc. - TPS Logistics, Inc. Agreement
This Agreement is entered into this 1st day of March, 2005, by and between
Commodity Express Transportation, Inc. (hereinafter referred to as "CARRIER") a
Delaware Corporation and TPS Logistics, Inc. (hereinafter referred to as
"BROKER") a South Carolina Corporation.
WITNESSETH:
WHEREAS, BROKER, to satisfy Amcor PET Packaging (Broker's Customer)
transportation needs desires to engage CARRIER as its exclusive carrier to
perform all of BROKER's transportation requirements described in the TPS
Logistics, Inc. - Amcor PET Packaging logistics agreement ,within the limit of
the CARRIER's operating authority according to this Agreement terms and
conditions and CARRIER desires to perform such transportation; and
WHEREAS, this agreement is being completed and executedin accordance with
the mutual agreement between CARRIER, BROKER and various other parties, dated
March 21, 2005.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
agree as follows:
1.1 INTERSTATE. CARRIER is a contract carrier which holds a permit from the
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Department of Transportation - Federal Motor Carrier Safety Administration at
Docket No. MC-163607, and CARRIER is authorized to and shall provide motor
carrier contract service (hereinafter called "Transportation Service") to meet
the specific needs of BROKER. CARRIER agrees to provide to BROKER a copy of
CARRIER'S operating authority upon execution of this Agreement. CARRIER agrees
to notify BROKER of any suspension, revocation, or any other changes in its
operating rights at least fifteen (15) days prior to the effective date of any
such suspension, revocation, or change.
1.2 INTRASTATE. CARRIER is authorized to operate as a motor carrier for the
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appropriate regulatory agencies for the states of ______________________________
at Docket Nos. _______________________ which authorize CARRIER to provide
Transportation Service within the states of _______________________. CARRIER
agrees to provide to BROKER a copy of CARRIER'S operating authority upon
execution of this Agreement. CARRIER agrees to notify BROKER of any suspension,
revocation, or any other change in its operating rights at least fifteen (15)
days prior to the effective date of any such suspension, revocation, or change.
2. PROPERTY BROKER LICENSE. BROKER is a licensed property broker which
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holds authority from the Department of Transportation - Federal Motor Carrier
Safety Administration at Docket No. MC-492228 B.
3.1 SERVICE OF CARRIER. The Transportation Service shall be for the prompt
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transportation of all of BROKER's loads to and from points and places designated
by BROKER and BROKER's customers, subject to the provisions of this Agreement
and the limitations of CARRIER'S operating authority. The Transportation
Service to be provided to BROKER by CARRIER shall include the following: (1) the
procurement of necessary approvals, authorities or licenses from all
Governmental Agencies; (2) the provision of motor vehicles and allied equipment
(hereinafter called the "Vehicles"); (3) the maintenance of the vehicles in
accordance with the rules and regulations of the Federal Motor Carrier Safety
Administration; (4) the employment of drivers qualified pursuant to the rules
and regulations of the Federal Motor Carrier Safety Administration; (5)
compliance with all of BROKER's customers safety program requirements; (6)
proper compliance with State and Federal safety regulations; (7) the safe,
proper, and legal load securement of all products tendered by BROKER's customers
to CARRIER; (8) the dispatch of drivers and Vehicles; (9) timely delivery; (10)
the procurement of all supplies and (11) all billing and collections for BROKER.
3.2 SERVICE TO AMCOR PET PACKAGING. CARRIER shall also provide the services
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listed on Motor Transportation Contract dated November 10, 2004 and
corresponding addendum dated March 1, 2005 of the Amcor Pet Packaging - TPS
Logistics, Inc. contract. Such contract is attached hereto as Exhibit A of this
agreement. Such services will be performed by CARRIER employees and at no time
will be considered BROKER employees.
4. TERM OF AGREEMENT. The term of this Agreement will begin on March 21,
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2005 and will not expire as long as BROKER's agreement (Exhibit A) date March 1,
2005 is in effect or an end date of March 20, 2010 whichever comes first.
5. RATES AND CHARGES. As compensation for the Services provided by CARRIER
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pursuant to the terms and conditions of this Agreement and its Exhibits, BROKER
shall pay One Hundred Percent (100%) of all receipt that BROKER receives from
the Amcor Pet Packaging contract into TPS bank account number __________, such
account to be controlled by CARRIER. CARRIER shall return One Percent (1%) of
the gross receipts to BROKER within one day of Amcor Pet Packaging depositing
such receipts. CARRIER shall also pay all administrative and wire transfer fees
that are charged to TPS bank account number ___________.
6. CONTRACT CARRIAGE. Regardless of whether CARRIER is authorized to
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operate or does operate as a Common Carrier, each and every shipment tendered to
CARRIER by BROKER shall be deemed to be tendered to CARRIER as a motor Contract
Carrier and shall be subject only to the terms of this Agreement and the
provisions of law applicable to motor contract carriage. The CARRIER rules;
waivable statutory provisions under 49 USC 14101; and other documents which are
inconsistent with the terms of this contract are hereby expressly waived and
shall be null and void, and the terms of this contract shall govern.
7. INDEPENDENT CONTRACTOR. The relationship of CARRIER to BROKER shall at
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all times be that of an independent contractor and such status shall govern all
relations between CARRIER, BROKER, and any third party.
8. REGULATIONS OF THE FEDERAL GOVERNMENT. CARRIER must comply with all the
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rules and regulations of the Federal Motor Carrier Safety Administration.
9. INSURANCE. CARRIER shall maintain at its own cost, at all times during
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the life of this Agreement, a policy for liability insurance in an amount not
less than One Million dollars ($1,000,000) or such higher insurance coverage as
may be required by law, which policy shall provide coverage for public
liability, property damage, environmental restoration, and injury or death to
persons resulting from the performance of the Transportation Service. CARRIER
shall also maintain at its own cost, at all times during the life of this
Agreement, a policy for cargo liability insurance in an amount not less than One
Hundred Fifty Thousand dollars ($150,000) or such higher insurance coverage as
may be required by law or by BROKER from time to time. CARRIER shall also
maintain at its own cost, at all times during the life of this Agreement a
comprehensive general liability of One Million Dollars ($1,000,000) specifically
endorsed to cover the indemnity provision between BROKER and CARRIER. These
insurance policies providing the above coverage shall be written by a reputable
insurance company. These policies shall also provide that the Insurance Company
issuing such policies shall notify both the CARRIER and BROKER of its intention
to cancel any policy at least ten (10) days prior to the effective date of
cancellation.
10. CONFIDENTIALITY. CARRIER acknowledges that his position as CARRIER for
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BROKER gives him access to special knowledge of BROKER's organization and
business methods which could be harmful to BROKER if used for any purpose other
than the promotion of BROKER's business as provided in this Agreement. CARRIER
agrees that during the term of this Agreement that CARRIER will not communicate
with any of BROKER's customers. CARRIER agrees that in the event of any breach
of the covenants contained in this paragraph BROKER will be entitled, in
addition to any other rights and remedies, to an injunction or restraining order
restraining CARRIER from committing or continuing to commit any breach of these
provisions, and CARRIER hereby consents to the issuance of such injunction or
restraining order or other equitable relief without bond or other security and
without the necessity of actual damage to BROKER.
11. FORCE MAJEURE. Neither BROKER nor CARRIER shall be liable in any
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respect for failures caused, directly or indirectly by war, strikes, lock-outs,
lack of raw materials or supplies, general economic conditions, lack of demand,
explosions, fires, floods, hurricanes, cyclones, terrorist attacks or other acts
of God or casualties beyond the control of either BROKER or CARRIER. During the
existence of any of these conditions, the obligations of the parties hereunder
shall be suspended for the duration of same.
12. FREIGHT CLAIMS. BROKER and CARRIER acknowledge the application and
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controlling status of the provision published and/or formerly published in Part
1005 of Title 49, Code of Federal Regulations and 49 X.X. 00000(x) with regard
to claims of and actions for loss or damage to commodities transported pursuant
to the terms and conditions of this Agreement. Except to the extent modified by
the Agreement, all claims for recovery by the BROKER for such loss or damage to
commodities transported, must be filed with the CARRIER within nine (9) months
of the date of delivery or tender of delivery of that shipment.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire contract
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between the parties. This Agreement shall not be modified or changed by any
express or implied promises, warranties, guarantees, representations or other
information unless expressly and specifically set forth in the Agreement or an
Addendum properly executed by the parties.
It is agreed that there are no oral representations, agreements, or
understandings affecting this instrument and that any future representation,
agreements, understandings or waivers to be binding upon the parties hereto,
must be reduced to writing. Either party's failure strictly to enforce any
provisions of this Agreement shall not be construed as a waiver or modification
thereof excusing the other party from performance.
If any provision of this Agreement is found to be unlawful or unenforceable for
any reason, such provision shall be severable from this Agreement, and all other
provisions shall be binding upon the parties and shall remain in effect.
14. JURISDICTION. This Agreement shall be deemed to have been drawn under
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South Carolina Law and this Agreement shall be construed in accordance with the
laws of the State of South Carolina.
15. NOTICES. Notices shall be sent by registered mail, return receipt
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requested, to each party at the address shown below, or to such other addresses
as shall have been designated in writing.
CARRIER: Commodity Express Transportation, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
BROKER: TPS Logistics, Inc.
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
In Witness Whereof, the parties hereto have caused this Agreement to be
executed in their respective names by their duly authorized representatives as
of the date first above written.
BROKER: TPS Logistics, Inc.
By: _______________________________
Title: ____________________________
CARRIER: Commodity Express Transportation, Inc.
By: _______________________________
Title: ____________________________
